Moderator: Do we have to trade privacy for security? According to polls, "We're willing to give up more of our privacy for more security." Are we really? What are some of the issues here?

Ari Schwartz: There is a balance. Recently a lot of the agencies have gotten the idea to do these risk assessments -- privacy and security impact assessments -- in the same way that we do with environmental impact assessments. That has been a major step forward. But in other instances, the funding of these assessments has not been addressed at all. For example, the INS has completely antiquated computer systems. They have not done any kind of privacy-security analysis because they don't have the funding to do that.

Ninety percent of the USA PATRIOT Act was not controversial. For example, it increases the budget of the woefully under-funded FBI computer crime lab. However, there were also provisions in there that we have major concerns with, especially those overriding privacy laws, the state privacy acts, the library records privacy laws, etc. Also, it removed much of the oversight by the judiciary so it gives law enforcement more unchecked powers. Now it becomes harder to monitor because it's no longer going through that independent judiciary. So we are concerned that that balance has swayed off, particularly in the wiretapping area. It's something we're going to have to monitor carefully, despite the fact that we've lost the formal power to do that monitoring.

John Sennett: We're faced with a situation now where the American people want us to detect, deter and disrupt terrorist elements before they have an opportunity to kill us. And that's entirely rational. But it does create tremendously difficult and complicated problems. How do we, as a government that keeps data on people, mine that data if they haven't done anything wrong? We don't investigate people in our country who haven't done anything wrong or who haven't conspired to do something wrong. By the time somebody is conspiring, the thing that they're going to do might be only a week away and it might take 3,100 lives. But I agree that the thing that holds our system together is judicial scrutiny...skeptical judicial scrutiny.

The FBI must go before a judge and say, "Your honor, we need to identify e-mail traffic between her and him." And the judge says, "Well, why do you need to do that? Why do you think they're engaged in something that is criminal?" And we have to explain why we think it's important that we have the e-mail traffic between her and him. And then we have to explain to the judge how we are going to sort out only her e-mail traffic that goes to him and only his e-mail traffic that goes to her. Every 30 days or 60 days, when the warrant has to be renewed, we go back before the judge. Judicial scrutiny is what keeps police powers from being abused more than anything else and we shouldn't let it go.